The Doctor’s Advocate | Fourth Quarter 2013
Anti-MICRA Ballot Measure Filed; Oklahoma Special Session
In the last issue of The Doctor’s Advocate, I discussed efforts by The Doctors Company and others to prevent the Consumer Attorneys of California (CAOC) from getting legislation passed that would raise or eliminate the cap on noneconomic damages that is central to California’s Medical Injury Compensation Reform Act of 1975 (MICRA). In an attempt to increase pressure on the legislature, CAOC and its front group, Consumer Watchdog, filed a proposed ballot measure with the attorney general seeking to raise the MICRA cap to over $1 million. The drastic increase to the MICRA cap is buried in a lengthy proposal that would also require use of the state database monitoring prescription drugs and mandate physician drug testing.
The stated goal of the personal injury lawyers was to push the legislature and MICRA supporters to compromise on an increase to the cap in order to avoid an expensive campaign to defeat the ballot measure. The tactic was unsuccessful and, in fact, appears to have backfired completely. Shortly after the measure was filed, Assembly Speaker John Perez (D-Los Angeles) appeared on a local television network affiliate in Los Angeles and pointed out that, with a ballot measure in the works, no legislator needed to take a potentially controversial stand on legislation that might alienate supporters.
Despite constant efforts by CAOC to pressure the governor and legislative leaders to support an end-of-session attack on the cap, the California legislature adjourned at midnight on September 12, 2013, without a MICRA amendment coming to the floor of either house. The Doctors Company and other members of the MICRA coalition spent the last weeks of the session lobbying legislators and explaining why the coalition has grown to more than 900 organizations opposed to any increase in the cap.
With the session over for this year, the focus has shifted to the ballot measure. Members of the MICRA coalition have formed a committee to oppose the measure and have begun organizing the opposition campaign and raising funds to defeat the measure—with over $30 million contributed so far. The trial lawyers are likely to begin gathering signatures in late October or early November. If the measure qualifies, it will be on the November 2014 general election ballot. Supporters of MICRA are well organized and committed to defeating the measure should it qualify for the ballot.
Oklahoma Reinstates Tort Reforms in Special Session
In response to a pair of 2013 decisions by the Oklahoma Supreme Court invalidating the Comprehensive Lawsuit Reform Act of 2009, the Oklahoma legislature met in a special session and enacted new laws reinstating many of the key provisions of the 2009 reforms.
The 2013 legislation reenacted the 2009 language, providing for a variety of mostly procedural reforms that include standards for expert testimony, immunity from liability for volunteers, court discretion over venue, and a definition of frivolous litigation.
Other reforms revived by the new laws include provisions affecting the use of credentialing information as evidence of negligence by a healthcare facility, a law requiring an affidavit that the plaintiff has acquired an expert opinion alleging negligence, and language limiting the ability of the plaintiff to dismiss an action without prejudice after a pretrial hearing.
Oklahoma enacted legislation in 2011 that lowered its cap on noneconomic damages to $350,000. That code section was not invalidated by the recent court opinions and so was not addressed in the special session.